Burgess v. State

• Decision Date: 18 September 1991
• Docket Number: 1090-90,Nos. 0711-90,s. 0711-90
• Parties: Earl Barrington BURGESS, Appellant, v. The STATE of Texas, Appellee. Paul Edward ARCHIE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 424

816 S.W.2d 424

Earl Barrington BURGESS, Appellant, v. The STATE of Texas, Appellee.

Paul Edward ARCHIE, Appellant, v. The STATE of Texas, Appellee.

Nos. 0711-90, 1090-90.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 18, 1991.

Tom Moran, Houston, for appellants.

John B. Holmes, Jr., Dist. Atty., and Kimberly Aperauch Stelter and Mark Ellis, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANTS' PETITIONS FOR DISCRETIONARY REVIEW

CLINTON, Judge.

These petitions for discretionary review were granted, and consolidated, so that we could review rulings of two panels of the Fourteenth Court of Appeals upholding convictions of defendants who were allowed to represent themselves despite the failure of each to execute a written waiver of the right to counsel under Article 1.051(f) and (g), V.A.C.C.P. We are once again called upon in these causes to balance the accused's Sixth Amendment right to counsel against his independent Sixth Amendment right not to have counsel thrust upon him. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). We will affirm both judgments, but for reasons different than those given by either panel of the court of appeals.

IA.

Appellant Burgess was convicted of the offense of felony forgery and his punishment, enhanced with two prior convictions, was assessed at forty years. On appeal he contended that the record fails to show he knowingly and intentionally waived his right to counsel or invoked his right to self-representation. He also complained that there is no written waiver of his right to counsel as required by Article 1.051(g), supra. Over a month before trial appellant filed a motion to proceed pro se. The trial court inquired about appellant's age, education, and prior experience in a criminal courtroom, and admonished him of the dangers and disadvantages of self-representation. Appellant persisted in his desire to represent himself, and the trial court let him. The court of appeals concluded that the record was sufficient to establish appellant did invoke his right to self-representation after having orally waived counsel. We declined to grant review of this conclusion. As for appellant's claim that he should not have been allowed to represent himself without executing a written waiver of counsel pursuant to Article 1.051(g), supra, the court of appeals reasoned:

"Under the circumstances, we view the signed motion to proceed pro se as being in substantial compliance with the intent of TEX.CODE CRIM.PRO.ANN. art. 1.051(g). However, if there was error in not having a waiver prepared to more substantially conform with the exact printed text of TEX.CODE CRIM.PRO.ANN. art. 1.051(g), it was harmless beyond reasonable doubt."

Burgess v. State, 790 S.W.2d 856, at 860 (Tex.App.--Houston [14th] 1990). We granted appellant's petition for discretionary review to examine this holding.

IB.

Appellant Archie pled guilty to the offense of possession of cocaine, and his punishment, also enhanced, was assessed at thirty years. On appeal he contended that he neither waived counsel nor invoked his right to self-representation, but only asserted that he did not want to be represented by the particular lawyer that was appointed to his case. He also complained that he could not validly waive counsel absent execution of the written waiver prescribed in Article 1.051(g), supra. The court of appeals held that appellant did not simply express a dissatisfaction with appointed counsel, but affirmatively waived counsel and asserted his right to represent himself. The court of appeals continued:

"Moreover, the court had no obligation to provide appellant with the waiver form suggested in article 1.051(g). Johnson v. State, 760 S.W.2d 277, 290 (Tex.Cr.App.1988). Furthermore, the record reflects that appellant made no objection to the trial court's failure to provide the form. Williams v. State, 774 S.W.2d [703,] at 705 citing TEX.R.APP.P. 52(a). Even if the form is required as a matter of right, a defendant in a criminal prosecution may waive any rights secured him by law except the right to trial by jury in a capital felony case. TEX.CODE CRIM.PROC.ANN. art. 1.14(a)."

Archie v. State, 799 S.W.2d 340, at 344 (Tex.App.--Houston [14th] 1990) (Emphasis in the original). See also Williams v. State, 774 S.W.2d 703, at 705-706 (Tex.App.--Dallas 1989, pet. ref'd). We granted appellant's petition for discretionary review to examine both the court of appeals' holding that appellant asserted his right to self-representation and that failure to secure the written waiver of counsel was not reversible error.

We begin with the question whether appellant Archie asserted his right to self-representation. Agreeing with the court of appeals that he did, we will then turn to the question whether reversible error follows from the failure of the trial court to require written waiver of counsel pursuant to Article 1.051(g), supra, before allowing an accused such as Archie or Burgess to proceed pro se.

II.

By the time appellant Archie appeared for pre-trial motions and trial in his cause, on June 12, 1989, the trial court had already dismissed one appointed attorney and replaced him with another. On that day Archie filed a pro se motion requesting dismissal of his second appointed counsel. At the conclusion of a hearing on a motion to suppress, in which appointed counsel participated, Archie called his motion to dismiss counsel to the trial court's attention and informed the court that he had retained new counsel who was supposed to be present in the courtroom. The trial court carried the trial over to the next day, and meanwhile discovered that the attorney allegedly hired by Archie's mother had not been retained after all. Accordingly, on June 13, 1989, the trial court informed Archie that retained counsel:

"... has not and does not represent you. We are going to get a jury up here and try you today.

THE DEFENDANT: Well, your Honor, I object to going to trial and I want to represent myself in this case."

The trial court then proceeded to "be sure you understand what you are getting into." Archie related that he had completed "about a hundred and twenty hours" of course credit at a junior college, and had represented himself in a federal civil rights lawsuit. Further, as summarized by the court of appeals:

"The court advised appellant the rules of evidence and procedure as applied to lawyers would also apply to him. The court also informed appellant it would treat his objections in exactly the same manner as a lawyer's objections. In addition, the court admonished appellant he would be under the same rules of procedure and conduct required of a lawyer. Furthermore, the court warned appellant it would not 'cut [him] any slack' and would 'hold [him] to one hundred percent the same standard' to which a lawyer would be held. Finally, the court cautioned appellant the appellate court would also not 'cut him any more slack than they would for a regular lawyer.' "

799 S.W.2d at 342. After these admonishments were given appellant objected to going to trial that day on the ground that he had not had adequate time to prepare. The trial court overruled this objection, but offered to let appointed counsel remain as standby to advise Archie. Archie requested "another attorney to advise me." The trial court denied this request, and when Archie then objected "to this man representing me[,]" the trial court excused appointed counsel. Representing himself, Archie then proceeded to plead guilty pursuant to a plea agreement with the State.

Archie now contends that forcing a Hobson's choice between going to trial with unacceptable appointed counsel and self- representation will render any supposed waiver of counsel involuntary. He relies on the opinion of the First Court of Appeals in Privett v. State, 635 S.W.2d 746 (Tex.App.--Houston [1st] 1982), which in turn cited this Court's opinions in Thomas v. State, 550 S.W.2d 64 (Tex.Cr.App.1977), Robles v. State, 577 S.W.2d 699 (Tex.Cr.App.1979), and Renfro v. State, 586 S.W.2d 496 (Tex.Cr.App.1979). In our view, Thomas and Robles, both supra, are inapposite. In each case the trial court forced the accused to represent himself at trial upon no more than a complaint that he wanted present counsel dismissed from the case. Neither Thomas nor Robles asserted a desire to represent himself, much less waived the right to counsel. As Presiding Judge Onion observed in Robles, supra, at 703, "[t]his then is not the usual case where the accused affirmatively waives the right to counsel and demands the right of self-representation."

In Renfro v. State, supra, confronted with the choice of accepting appointed counsel he did not want or representing himself, the accused opted for the latter. This Court declared Renfro's waiver of counsel involuntary under these circumstances because it "was based solely on the court's refusal to appoint different counsel and not because he wished to forgo his right of representation." 586 S.W.2d at 500. The Court further observed that his decision to represent himself was not intelligently made as required by Faretta v. California, supra:

"The court made no inquiry into the appellant's age, educational background, legal experience, knowledge of the rules of evidence and trial procedure nor was the appellant made aware of the dangers and disadvantages of self-representation. In short, the record fails to demonstrate that the appellant's choice to represent himself was made with his 'eyes open.' "

586 S.W.2d at 500 (apparently quoting Faretta, which in turn quotes Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942)).

Archie unequivocally asserted his right to self-representation. Since Renfro this Court has observed that a trial court need follow no "formulaic questioning" or particular "script" to assure itself that an...